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death penalty news----NEV., USA
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Rick Halperin
2017-11-10 14:43:17 UTC
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Nov. 10




NEVADA----stay of impending volunteer execution

Nevada execution postponed over dispute about paralytic drug



Nevada's 1st inmate execution in 11 years was postponed Thursday after a state
court judge ordered a paralytic drug removed from a never-before-used lethal
injection plan that also includes the first use by a state of the powerful
opioid fentanyl.

Prisons chief James Dzurenda called off the execution that had been set for
Tuesday for twice-convicted murderer Scott Raymond Dozier after a solicitor for
the state attorney general's office said the order would be appealed to the
Nevada Supreme Court, prisons spokeswoman Brooke Keast said.

Dozier has given up appeals and repeatedly told Clark County District Court
Judge Jennifer Togliatti he wants his death sentence carried out.

The judge said before issuing her order that she was "loath to stop" the
process but was concerned the state plan to administer the 3 drugs could leave
Dozier aware of pain and struggling with "air-hunger."

The state had planned to administer the muscle paralytic cisatracurium after
injecting Dozier with high doses of the sedative diazepam and with fentanyl to
depress and stop his breathing.

The judge pointed to testimony last week from Dr. David Waisel, a Harvard
University anesthesia professor and pediatric anesthesiologist at Boston
Children's Hospital. He said the paralytic should not be needed if the other 2
drugs are delivered properly in the lethal amounts in the state protocol.

"It's for the Supreme Court to decide," Togliatti said Thursday. "They're going
to have to be the court to make that determination that we as a state are OK
with a paralytic."

Togliatti said the execution could go forward with a 2-drug combination. But,
"If the state of Nevada is not comfortable with the fentanyl and diazepam
alone, then it supports the argument that (cisatracurium) is being used for a
mask and he could suffer," she said.

Dozier's execution can still happen once the state Supreme Court rules,
Togliatti said.

She set a Dec. 7 date to check the status of the case.

Waisel was hired by David Anthony, a deputy federal public defender who Dozier
allowed to review the untried 3-drug protocol.

Anthony contended the paralytic was being used not as a substitute for a
heart-stopping drug like most death-penalty states use, but to prevent
witnesses from seeing if Dozier experiences an unconstitutionally inhumane
death.

Assistant state Solicitor General Jordan Smith did not present testimony from
Dr. John DiMuro, an anesthesiologist and the state's chief medical officer who
developed the diazepam-fentanyl-cisatracurium protocol.

DiMuro resigned last week from his position as the state's top doctor, but
provided an affidavit to the court saying his departure had nothing to do with
Dozier's execution.

DiMuro's brother and lawyer, Christopher DiMuro, said his brother carried out
an assignment to develop an execution method using drugs that Nevada could
obtain.

Invoice records show the drugs were delivered in late May to Nevada prisons
from the usual pharmacy supplier, Cardinal Health, at a cost of $482.52. A
Cardinal Health spokeswoman didn't directly say whether the pharmaceutical
wholesaler knew the intended use for the drugs.

John DiMuro wouldn't agree to an interview, Christopher DiMuro said, but he
wouldn't disagree with Waisel that the paralytic could be unnecessary if the
1st 2 drugs are properly delivered at fatal doses.

"John is not on one side or another about the death penalty," the brother said
from New Jersey.

Dozier also used the name Chad Wyatt. He would become the 1st person put to
death in Nevada since 2006, when Daryl Mack asked to be put to death for his
conviction in a 1988 rape and murder in Reno.

His would be the 1st lethal injection in a new execution chamber at Ely State
Prison, 250 miles north of Las Vegas. It was completed in November 2016 at a
cost of about $854,000.

(source: Associated Press)

******************************************

Experts weigh in on use of paralytic drug in executions



Nevada's 1st execution in 11 years was delayed after a Las Vegas judge decided
Thursday to strike a controversial paralytic drug from the state's
never-before-used 3-drug lethal injection plan.

Clark County District Judge Jennifer Togliatti expressed concerns over the
effects the paralytic drug would have on death-row inmate Scott Dozier.

Experts testified the drug would cause Dozier to suffocate to death and mask
his possible suffering if the other 2 drugs, fentanyl and diazepam, were
administered incorrectly.

Dozier, 46, who was twice convicted of murder, voluntarily waived his right to
appeal his death sentence after living behind bars for more than a decade. His
execution was scheduled for Tuesday night at Ely State Prison.

Nevada ACLU launches petition to stop upcoming execution of Las Vegas murderer

On Thursday, the Nevada Department of Corrections announced a stay of
execution, and it was unknown when Dozier's sentence would be carried out.

A lawyer for the state attorney general's office said they plan to appeal the
judge's order with the Nevada Supreme Court.

But the debate over the use of a paralytic drug in lethal injection executions
is nothing new. It's an issue that's been talked about for 40 years since
Oklahoma adopted lethal injection as a means of execution - a year after the
U.S. Supreme Court reinstated the death penalty in 1976.

Many death penalty experts argue paralytic drugs can lead to a cruel and
unusual death, which would go against the Eighth Amendment of the U.S.
Constitution.

The Reno Gazette Journal reached out to several experts to discuss why the use
of a paralytic drug has created such a huge controversy among state officials,
attorneys and physicians.

Lethal injection: A 40-year battle

In 1977, Dr. Jay Chapman developed a 3-drug protocol to be used in Oklahoma,
which became the 1st state to adopt lethal injection execution. The drug
cocktail included the sedative sodium thiopental; a paralytic agent,
pancuronium bromide; and potassium chloride, which stopped the heart.

Up until 2009, each state implemented similar protocols using those 3 drugs.
But many pharmaceutical companies stopped manufacturing and selling the drugs,
leading to a shortage, according to Deborah Denno, a professor at Fordham
University School of Law.

Denno has written 26 articles about capital punishment. She said she looked at
the dosages states were using in lethal injection executions for a nationwide
survey she conducted in 2001 and 2005.

"The states were going everywhere and in every which way because they couldn't
find this initial drug that rendered the inmate unconscious," Denno said,
referring to sodium thiopental. "And in some of these cases, they weren't
giving nearly enough drugs to make somebody unconscious."

And that presented a problem, according to Megan McCracken, an attorney for the
Death Penalty Clinic at UC Berkeley School of Law.

"From a legal perspective, we know it's beyond question that if the person is
conscious or aware, that would lead to an excruciating death," McCracken said.
"That would violate the Constitution."

Lethal injection has resulted in several botched executions - most recently in
Ohio, Oklahoma, Arizona, Georgia and Alabama within the past 3 years, according
to the Death Penalty Information Center. Several death-row inmates were seen
gasping for air or writhing in pain.

Paralytic drugs affect the way skeletal muscles relax and contract. It
paralyzes the diaphragm, which controls breathing.

If the prisoner isn't rendered unconscious, they can suffocate to death.

The paralytic was meant to preserve the dignity of the prisoner, according to
Robert Dunham, executive director of the Death Penalty Information Center, a
national nonprofit organization that provides information and analysis on death
penalty issues.

"The paralytic performs no legitimate function in the execution itself," he
said. "It's so that it's less difficult for the eyewitnesses to watch."

Death by suffocation: Is it cruel?

None of drugs chosen by state officials to be used in the lethal injection were
designed to kill, according to Dr. Joel Zivot, an associate professor of
anesthesiology and surgery at Emory University School of Medicine.

Fentanyl is an opioid designed to take away symptoms of pain. Diazepam is a
drug similar to Valium used to treat insomnia and anxiety. It's also used in
non-invasive procedures, but it does nothing to affect awareness or
consciousness.

The 3rd drug, the paralytic cisatracurium, is used on patients undergoing
surgery to prevent muscle contraction.

Zivot said cisatracurium would have paralyzed and then ultimately killed
Dozier.

"So, essentially what this is - to be clear - is death by suffocation," Zivot
said.

Other medical experts like Dr. Susi Vassallo, a professor of emergency medicine
at New York University School of Medicine, argues fentanyl is the killing drug.

"In this case, we have thousands of deaths from fentanyl, and it clearly
works," she said, adding fentanyl is at the center of the opioid epidemic in
the U.S. "Then why add valium to that? Why paralyze them if (fentanyl) is so
effective?

"There's no pain, you're unconscious and you stop breathing. It's perfect."

The use of a paralytic drug could prevent witnesses - and the public - from
knowing whether Dozier's execution was unconstitutional.

"It's the witnesses' responsibility to observe the execution and then decide
whether or not it looks cruel," Zivot said.

Constitutional problems

Dunham, who previously worked as an attorney in death penalty cases, said the
way states carry out executions raises questions about possible constitutional
violations.

He said the Supreme Court has allowed executions to move forward using drug
combinations that have been known to be problematic. The Supreme Court has also
allowed states to execute prisoners while they were in the midst of litigation,
Dunham said.

Another problem is the state execution protocols.

"A botch implies that things did not go as planned, and that somehow the state
failed to follow this protocol," Dunham said.

"It's the protocol that's the problem," he said. "You can botch it on top of
that, which is always a risk."

Experts agree that the execution protocol is key in determining whether an
execution will be lawful. The protocol would include information on the order
the drugs will be administered, the dosages and who will be carrying out the
execution.

But the Nevada Department of Corrections has yet to release the state's
execution protocol to the public, despite requests from media and local civil
rights groups.

Spokeswoman Brooke Keast previously told the Reno Gazette Journal that the
protocol was under seal. It was unknown when it would be released following
Togliatti's order to remove the paralytic drug from the state's execution plan.

Federal public defenders representing Dozier have pushed to ensure that his
execution be done humanely.

Dunham said the U.S. Supreme Court has ruled that a death-row prisoner must not
only prove their execution method is cruel, but also offer an alternative.

"It's virtually impossible for the defendant to meet the burden because the
states in charge of carrying out these executions hide the execution behind a
veil of secrecy," he said.

Nevada lawmakers are debating whether or not to pass a bill that would end the
state's death penalty. Supporters cite a 2014 audit report that says the death
penalty costs about $500,000 more than non-death penalty cases.

Dunham said lethal injection is "essentially a medical practice."

"You're inserting IV lines, and you're often dealing with the sobriety of drug
abusers or inmates who, because of various health reasons, don't have
accessible veins," Dunham said. "And medical personnel are not permitted to
participate because that's unethical."

"So, you have people who are not as well-trained dealing with setting IVs ..."
he said.

He said an execution would not be considered unconstitutional unless the courts
rule it as such.

"The medical evidence is the medical evidence, and there's going to be a
certain amount of pain involved in an execution no matter how it's carried
out," Dunham said. "The question is: How much is acceptable?"

(source: Reno Gazette-Journal)

*********************

Death penalty does a disservice to Nevada: Editorial



The state of Nevada is set to execute Scott Dozier on Nov. 14 for the 2002
murder of Jeremiah Miller in Las Vegas. And for the 1st time since the 2006
execution of Daryl Mack, the debate on capital punishment in Nevada shifts from
philosophical abstraction to stark reality.

For the moment, let's ignore how they do it in other states and other
countries. Pay no attention to the opinions of out-of-state politicians,
national media pundits and global religious leaders. Nevada's death penalty is
for Nevadans to debate.

And in the opinion of the RGJ Editorial Board, the death penalty does not serve
Nevada in any way.

Proponents have argued that the crime of 1st-degree murder deserves nothing
less than the ultimate punishment, and that the existence of the death penalty
deters violent crime and gives prosecutors another weapon in their arsenal to
solicit plea bargains. Available evidence suggests those things are not true in
this state.

Fear of the death penalty doesn't deter violent crime.

The homicide rate hovered below 15 per 100,000 Nevadans in the mid-1970s, when
the U.S. Supreme Court had ruled the death penalty to be unconstitutional. The
rate spiked to 20 homicides per 100,000 residents in 1980, 4 years after the
death penalty was reinstated. Similarly, the rate of violent crime in the state
surged in the late '70s and early '80s despite the return of capital
punishment.

Over the past 13 years, as states have begun to place moratoriums on the death
penalty or abolish it altogether, Nevada - 1 of 31 states practicing capital
punishment - has ranked in the top 10 for violent crime per capita every year
since 2002, and in the top 5 every year since 2006. If potential criminals in
Nevada have any apprehension about committing violent crime, it's not reflected
in the numbers.

Prosecutors aren't using the threat of the death penalty to encourage plea
bargains.

The death penalty isn't used strategically to avoid trials or elicit plea
bargains - in fact, plea bargaining takes place about 14 % less often when
defendants potentially face the possibility of capital punishment, according to
a death penalty performance audit commissioned by the 2013 Nevada Legislature.

In fact, the bureau directly asked the district attorneys' offices in Washoe
and Clark counties if the death penalty was used as a bargaining tool. Both
offices said no; Clark County DA Steve Wolfson said the practice would be
"unethical."

The cost of seeking the death penalty wastes taxpayer dollars that could be
used for other law enforcement needs.

The Legislative Counsel Bureau's report found that costs for incarcerating
inmates prior to execution were lower than incarcerating inmates serving life
sentences without the possibility of parole - approximately $175,000 less per
inmate. But 11 of the 12 inmates executed in Nevada since 1976 gave up on their
right to continue appealing their conviction. When death-row inmates continue
to pursue appeals, the LCB found that incarceration costs were slightly higher
than those serving life without parole.

The most significant cost difference between the death penalty and life without
parole is in trial and appeal costs. Pursuing the death penalty costs
approximately $532,000 per case more than murder cases where the death penalty
isn't sought, due to separate trials for sentencing, automatic appeals and
other procedural safeguards to ensure fair, error-free trials.

Those are dollars that can and should be used by Nevada's counties for public
safety - law enforcement salaries, crime lab equipment, search-and-rescue
funding. The presence of capital punishment doesn't seem to have any impact on
Nevada's rate of violent crime; allocating tax dollars to pursue the death
penalty instead of other law enforcement functions is making Nevadans less
safe.

Over time, we've changed our thinking.

Over the years, our thinking has evolved on the death penalty. As far back as
the 1870s, the Nevada State Journal wrote both pro- and anti-death penalty
editorials; the editorials, written years apart, both expressed the belief that
Nevada's crime rate would be reduced based on their way of thinking.

Capital punishment "does not diminish respect for life, but proclaims the high
value of life for all its citizens," read a Reno Evening Gazette editorial in
1979. We lamented "the seemingly endless string of appeals" available to
death-row inmates in a 1997 editorial.

But since 2001, the RGJ Editorial Board has grown increasingly wary of the
death penalty, based on the cost, the sentencing of underage defendants and the
mentally disabled, and the chance that insufficient legal counsel and a rush to
prosecute could lead to the execution of an innocent person. For just over a
decade, we have believed that the system is far too flawed to fix, and have
called for the abolition of the death penalty in Nevada.

Once again, with another execution date approaching, the RGJ Editorial Board is
calling for an end to capital punishment in the state of Nevada. As a crime
deterrent, a prosecutorial tool and a use of tax dollars, it just doesn't make
sense for the Silver State.

(source: Reno Gazette-Journal Editorial Board)








USA:

If This Case Is Heard By The Supreme Court, It Could End The Death
Penalty----Hidalgo's team is asking the court to strike down Arizona's death
penalty and rule on the constitutionality of capital punishment nationwide.



45 years ago, a case came before the United States Supreme Court that led to
the temporary strike down of the death penalty. Now, the court has the
opportunity to take up another case that could transform - or even end - the
death penalty in America.

In 1972, a black man named William Henry Furman was caught, mid-burglary, by a
homeowner in Georgia. Furman attempted to flee and in doing so tripped and
fell, causing the gun he was carrying to fire and kill the resident. Furman v.
Georgia asked the Supreme Court if the imposition (and carrying out) of the
death penalty in Furman's case constituted cruel and unusual punishment, in
violation of the 8th and 14th Amendments. The answer, in a 5-4 decision, was
yes.

Justices William Douglas, Potter Stewart and Byron White came to the conclusion
that entrenched racial biases caused an unacceptable level of arbitrariness in
deciding who would receive the death penalty. Justices Thurgood Marshall and
William Brennan went a step further, coming to the shared conclusion that the
death penalty in and of itself was cruel and unusual punishment and utterly
incompatible with the evolving standards of decency of a civilized society.
Justice Powell, in his opinion, famously wrote that the death penalty was
imposed on a "capriciously selected random handful" and was "cruel and unusual
in the same way that being struck by lightening is cruel and unusual." Furman
v. Georgia resulted in a 4-year-long moratorium on executions in the U.S., and
each person on death row had their death sentence commuted to life in prison. A
number of columnists across the country seemed to be in agreement that it was
unlikely that the death penalty would ever exist again in the United States.
Unfortunately, they were wrong.

In the wake of Furman, a number of states moved to entirely re-write their
death penalty statutes in an attempt to prove that their systems for imposing
the death penalty weren't arbitrary. Ideally, this would have meant narrowing
the imposition of capital punishment to the very worst crimes. What happened
instead, somewhat ironically, was the number of crimes that are death-penalty
eligible ballooning in number. In 1976, in Gregg v. Georgia, the Supreme Court
reinstated the death penalty by approving several states' new laws.

Many states have continued to add more and more aggravating factors that render
someone eligible for the death penalty, including murder for hire and
aggravated kidnapping. In 2015, Kelly Gissendaner was executed in Georgia for
orchestrating the killing of her husband, even though she herself did not
commit the murder.

In Arizona, the legislature has more than doubled its number of aggravating
factors since the 1970s. When Abel Daniel Hidalgo was sentenced to death for
1st-degree murder in 2015, the state had approved so many aggravating
circumstances that nearly everyone convicted of 1st-degree murder was now
eligible for death. Hidalgo also produced evidence that showed that several
neighboring Arizona counties were unable to pursue a death sentence in cases
far more egregious than his due to simple budget constraints.

In early 2017, Neal Katyal, the former Solicitor General under Obama (most
recently famed for his work as the lead attorney for Hawaii's challenge of
President Trump's travel ban) agreed to represent Hidalgo's case before the
Supreme Court. Hidalgo's team is asking the court to strike down Arizona's
death penalty and rule on the constitutionality of capital punishment
nationwide. The administration of the death penalty in 2017, they argue, is in
clear violation of the 8th Amendment, which holds that capital punishment must
be reserved for only the worst offenders. Arizona's current capital sentencing
statute, which allows for 99 % of 1st-degree murders to be death-eligible, does
not meaningfully narrow the class of offenders eligible to be executed to "the
worst of the worst."

There were approximately 17,250 murders in the United States last year. There
were 30 new death sentences imposed. Were these handed down in response to the
most egregious crimes to the most irredeemable people? No. Their race, their
socioeconomic status, their geographical location, and the quality of their
lawyers - both defense and prosecutor - ultimately played the most decisive
roles in which of them received a death sentence. Statistics tell us that it's
likely that 1 in 25 of those new death sentences was handed down to a person
who was completely innocent of the crime. There are clear patterns of race of
victim, or race of defendant, discrimination in courts across the country. A
total of 20 white people have been executed for the murder of a black person,
while 287 black people have been executed for the murder of a white person.
94.5 % of prosecutors in death penalty states are white.

It is time to accept that the death penalty experiment in the United States has
failed. The tangled web of racism, classism and human error has proven time and
again to be ineradicable in the administration of the ultimate punishment. If
the Supreme Court decides to hear Hidalgo v. Arizona, there is a very real
possibility that executions in the United States will end. As they should.

(source: Hannah Riley, Criminal Justice Reform & Anti-Death Penalty
Advocate----Huffington Post)

******************

Wrongful Convictions Like Mine Are Why It's Time To End The Death
Penalty----With another Arizona death row inmate taking his case to the Supreme
Court, justices ought to keep people like me in mind.



Let's play 2 truths and a lie.

I have played Dungeons & Dragons with guys on death row.

I got new teeth thanks to the TV show "Extreme Makeover" and now have a
Hollywood smile.

I am a lifelong Republican and veteran of the U.S. Air Force.

All 3 are true, no lies.

I spent more than 10 years in Arizona prisons for a crime I didn't commit,
including almost 3 years on death row. In 1992, I was convicted of killing a
waitress in a Phoenix bar where I sometimes played darts.

Because of a car accident in childhood, I had crooked front teeth. The police
interrogated me and asked me to bite into a piece of Styrofoam. At my trial and
re-trial, a so-called expert said that my teeth marks on the Styrofoam matched
teeth marks on the victim's body.

The police decided I did it and built a case against me. No one bothered to
test the blood that the real killer left on the victim's underwear. The crime
lab didn't test the hairs found on her body. Fingerprints from the crime scene
weren't sent to the national database for a match. It wasn't until 2002 that
DNA testing - which Arizona prosecutors opposed - showed that I couldn't have
committed the crime and identified Kenneth Phillips, who is now serving a
prison sentence for his crime.

Arizona is back in the spotlight because a man on death row named Abel Hidalgo
has asked the U.S. Supreme Court to strike down the state's death penalty
statute and abolish capital punishment nationwide. Before all this happened to
me, I supported the death penalty. "An eye for an eye, a tooth for a tooth"
sounds good, unless they are talking about you and you were home asleep at the
time of the murder.

"The death penalty is supposed to be applied to the worst offenders, but it's
more often applied to the defendants with the worst lawyers."

Now I join the chorus of voices, including a growing number of conservatives,
who say it's time to end the death penalty in every state. We have been unable
to create a system that is applied fairly, reserves the punishment for the most
serious crimes and doesn't make terrible mistakes. The death penalty is
supposed to be applied to the worst offenders, but it's more often applied to
the defendants with the worst lawyers.

Mr. Hidalgo was convicted in Maricopa County, which uses the death penalty more
than any other county in Arizona. That means whether you get the death penalty
is an accident of where the crime occurred, not necessarily the facts of the
case or the nature of the offender. And all too often, the race of the
defendant and the victim drives who gets the death penalty. One study showed
that white jurors were more likely to recommend a death sentence for Latinos
than for white defendants.

The court should look at where we are as a country, find that a national
consensus has emerged against the death penalty and rule it unconstitutional,
once and for all. 31 states have formally abandoned capital punishment. That
figure includes 19 states that have ended it all together, 4 states that have
put the death penalty on hold, and 8 others that haven't had an execution in
the past 10 years.

All the numbers point toward the death penalty's demise. Last year, juries
imposed 31 death sentences, the fewest since the Supreme Court declared
then-existing death penalty statutes unconstitutional in 1972. The 20
executions in 2016 marked the lowest number in a quarter century, according to
the Death Penalty Information Center. Also last year, national public opinion
polls showed support for capital punishment at a 40-year low.

I wish I could say my story is unusual. But the truth is, 160 men and women
have been exonerated and freed from death row since 1973. I often wonder how
the police and prosecutors that railroad innocent people onto the gurney sleep
at night.

In an op-ed, Marty Stroud, a former prosecutor in Louisiana who caused an
innocent man, Glenn Ford, to serve 30 years on death row before being
exonerated and released, explained: "In 1984, I was 33 years old. I was
arrogant, judgmental, narcissistic and very full of myself. I was not as
interested in justice as I was in winning." Mr. Stroud is unusual for his
honesty, but not for his tactics.

A TV show was able to fix my teeth, but no one has been able to remove mistakes
and unfairness from our death penalty system. A sentence of life without
parole, which is available in essentially every state, keeps the public safe
while affirming our basic humanity. The U.S. Supreme Court should take Hidalgo
v. Arizona and end the death penalty in Arizona and everywhere else.

(source: Ray Krone, Death row exoneree, co-founder of Witness to
Innocence----Huffington Post)

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